March 26, 2020

Making NSW bushfire ready: a look at changes in Planning For Bush Fire Protection (‘PBP’) 2019

As the climate changes, so too does our understanding of what it can do and how it affects the way we should build and develop our communities. In light of the 2019-2020 bushfires, where over 5.4 million hectares of land burned and over 2,400 homes destroyed, it is more important than ever that government authorities, landowners, and developers are considering whether fire prone land is being developed in a sustainable and safe manner.

Since the PBP 2006 was published and adopted, there have been significant developments in our understanding of bush fires and changes to building and construction standards. As a result, the PBP 2006 underwent an extensive review, which has culminated in the issue of PBP 2019 enacted on 1 March 2020. 

A link is at https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0005/130667/Planning-for-Bush-Fire-Protection-2019.pdf
 

The PBP 2019 covers a range of subjects from building and development standards to development applications. It provides new information that should be considered and sets out new requirements for bush fire protection measures for new buildings and developments. The PBP 2019 applies to all development applications and complying development on bush fire prone land in NSW.

Therefore, all involved in the design, construction, development and insurance for buildings in bushfire areas should ensure that they are including these considerations into how they assess and plan for bush fires.

Below we set out the key changes in and impacts of PBP 2019.  In light of the Royal Commission announced into bushfire management and response, we consider it is likely that these guidelines will be further reviewed, depending on the findings of the Royal Commission. As such, this is likely to continue to be an area of legislative scrutiny, considering whether building controls and materials are appropriate.

  1. What are the Key Changes?

    Below are the key differences between PBP 2006 and PBP 2019.

    1. Document structure changes

      Chapter 4 of the 2006 PBP – Performance Based Controls – has been separated into three different chapters in the 2019 PBP:

      • Chapter 5 – Residential and Rural Residential Subdivisions;

      • Chapter 6 – Special Fire Protection Purpose Developments; and

      • Chapter 7 – Residential Infill Development.

    2. New information regarding grassland areas added

      New information has been introduced within the separate chapters covering development in grassland areas. Where grass poses a fire hazard, development should be designed to incorporate appropriate protection measures.

    3. New chapter on strategic planning added

      A new chapter on strategic planning has been added. The aim of this chapter is to ensure that bush fire is properly considered at the rezoning stage of development to ensure that appropriate bush fire protection measures can be implemented at subdivision or design and build stage.

    4. Reassessment of risk vulnerable risk profiles

      A number of uses that are captured by the Rural Fires Act 1997 as Special Fire Protection Purpose (SFPP) development have been identified as having a less vulnerable risk profile.

    5. Change in fuel loads

      A different set of fuel loads have been used to define the setbacks required for development in NSW. The vegetation classification system used within PBP 2019 is based on the Keith (2004) framework. Available fuel loads are based on recent information provided by:

      • The University of Wollongong's Fuel Modelling Project;

      • The University of Melbourne which reference the fuel classifications found in Keith (2004); and

      • CSIRO Ecosystems Sciences and Bushfire Dynamics and Applications.
        The setbacks published in PBP 2019 replace the distances within AS 3959:2018 in NSW.

    6. Fire Weather Areas

      Fire weather areas across the State are currently under review. Local government boundaries in NSW have also changed.

      The fire weather area information has been removed from PBP and has been published on the NSW RFS website separately.

    7. Landscaping

      Standards have been introduced within PBP 2019 for assessing what constitutes an Inner Protection Area and an Outer Protection Area within the asset protection zone. All other landscaping guidance has been removed from the document and will be published within a revised version of the NSW RFS document Standards for Asset Protection Zones.

      The NSW Government has circulated a bush fire planning advisory note about the changes that implement the NSW RFS PBP 2019 in the development assessment and strategic planning processes of the NSW planning system.

      See Circular at https://www.planning.nsw.gov.au/-/media/Files/DPE/Circulars/planning-circular-20-001-planning-for-bushfire-protection-2020-03-02.pdf?la=en

  2. How and when does the PBP 2019 apply?

    The PBP 2019 is to be used for development applications or planning proposals to develop bushfire prone land which are lodged from 1 March 2020. Proposals lodged before this date are to continue to have regard to PBP 2006. However, existing developments should still consider the new guidelines, and any useful guidance for fire prevention

  3. The Effects of PBP 2019

    The PBP is referenced and given effect in the Environmental Planning and Assessment Regulation 2000, the Rural Fires Regulation 2013 and various other instruments. Landowners, developers, Councils, and certifiers should all be aware of how the changes will impact upon whether approvals are granted for new developments or refurbishments. This may in practice reduce the size of developments possible on a site, if greater allowances must be made for fire protection.

    1. Section 4.14 Environmental Planning and Assessment Act 1979 (EP&A Act)

      Under section 4.14 of the EP&A Act, development consent cannot be granted on bushfire prone land unless the consent authority:

      1. Is satisfied that the development conforms to PBP 2019; or

      2. Has been provided with a certificate by a recognised consultant assessing that the development conforms to PBP 2019.

        Section 4.14(1A) of the EP&A Act also provides that where the development does not conform with PBP 2019, the consent authority may grant consent for the development, but only after it has consulted with the Commissioner of the NSW Rural Fire Service (NSW RFS).

        Before PBP 2019 is adopted, developments that comply with the relevant specifications and requirements of PBP 2019 can be considered as means of satisfying the NSW RFS that PBP 2006 has been complied with.

    2. Complying Development

      A number of State Environmental Planning Policies (SEPPs) allow complying development on bush fire prone land.

      These include but are not limited to:

      - State Environmental Planning Policy (Exempt and Complying Development Codes) 2008;
      - State Environmental Planning Policy (Affordable Rental Housing) 2009;
      - State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017; and
      - State Environmental Planning Policy (Infrastructure) 2007.

      Applications must satisfy the relevant development standards, including compliance with PBP 2019.

    3. Section 100B Rural Fires Act 1997 (RFA)

      Under section 100B of the RFA, the Commissioner of the NSW RFS may issue a Bush Fire Safety Authority (BFSA) for:

      1 a subdivision that could be used for residential or rural residential purposes; or
      2 a development for special fire protection purposes.

      The application for a BFSA must be made to the Commissioner in accordance with the Rural Fires Regulation 2013 (RFR).

      Clause 44 of the RFR provides that an application for a BFSA must:

      1 be made in writing (which includes all items listed in Clause 44(1)(a) – (g); and
      2 include an assessment of the extent to which the proposed development conforms with or deviates from the standards, specific objectives and performance criteria set out in Chapter 4 of PBP 2006.

      We assume that this clause will shortly be updated to refer to PBP 2019.

  4. Will the Royal Commission impact the PBP?

    The Prime Minister recently announced the scope of the inquiry. The royal commission into this summer's bushfire season will investigate the consequences of "longer, hotter and drier seasons" and severe weather related events while recommending ways to improve "resilience in the face of changing climatic conditions".

    A link to PM media release is at https://www.pm.gov.au/media/national-royal-commission-black-summer-bushfires-established

    The terms of reference presents an exhaustive list requiring the inquiry to look at the responsibilities, arrangements and frameworks in responding to national disasters and emergencies.

    Most pertinent of which includes an inquiry into, ways in which Australia could achieve greater national coordination and accountability – through common national standards, rule-making, reporting and data-sharing – with respect to key preparedness and resilience responsibilities, including for the following:

    1 land management, including hazard reduction measures;

    2 wildlife management and species conservation, including biodiversity, habitat protection and restoration; and

    3 land-use planning, zoning and development approval (including building standards), urban safety, construction of public infrastructure, and the incorporation of natural disaster considerations.

    The terms of reference can be found at https://www.pm.gov.au/sites/default/files/files/tor-nat-royal-commission-black-summer-bushfires.pdf

  5. Implications and Conclusion

    Recent developments and responses to the PBP 2019 suggest that stricter requirements will be put on developers and landowners to minimise bush fire risks to property in fire prone areas.

    The inquiry will present a range of new issues that will need to be considered moving forward. New requirements and standards may be introduced and imposed, regulating the controls on buildings, locations, buffers, materials and infrastructures.  It is likely that further measures will be introduced to respond to the findings of the inquiry, such as a further revised PBP.

    Companies and developers should continue to expect and monitor reviews and updates in this space and a conservative approach should be adopted. It is crucial that they are familiar with their obligations, and appropriately equip employees to include and comply with new standards, engaging appropriate consultants where appropriate.

    Should you have any queries in relation to any of the matters raised, please feel free to contact Jacinta Studdert or Kristyn Glanville who are both in based in our Sydney office.